Lawyers.com > Understand Your Legal Issue > Labor & Employment Law > FLSA: Anti-discrimination and Retaliation

Your coworker worked the same hours as you did last week but wasn't paid the 10 hours of overtime you both worked. Later, when your employer dropped by your desk, the coworker confronted him about being stiffed on the overtime and told the employer that you were a witness. Your employer threatened to fire both of you if there was a complaint. Know your rights!

The Fair Labor Standards Act (FLSA) has two anti-discrimination provisions. The first prohibits sex discrimination in the payment of wages and is commonly known as the Equal Pay Act. The second anti-discrimination provision and the focus of this article relates to protected conduct in asserting wage and hour rights.

Protected Conduct

Specifically, the FLSA prohibits any person from retaliating or otherwise discriminating against any employee who:

• Files a complaint or institutes a proceeding under the Act
• Testifies or is about to testify in any such proceeding
• Serves or is about to serve on an industry committee

While all courts agree that the filing of formal complaints is a protected activity, a majority of courts extend protection to informal complaints if they involve wage and hour issues. However, the complaint must be based on a good faith belief that the employer is violating the FLSA or minimum wage or overtime pay provisions.

In order to prevail in a retaliation or anti-discrimination complaint, you must prove that:

• You were engaged in a protected activity
• The alleged retaliation or discrimination resulted from such activity

You do not have to prove that the employer actually violated the FLSA because the retaliation or discrimination prohibited is the employer's interference with the assertion of your rights under the FLSA, not the employer's violation of wage and hour laws.

What Constitutes Retaliation?

Retaliation occurs when the employer takes an adverse action against you for asserting your FLSA rights. The adverse action must be material, meaning that there must be a material or significant change in the terms and conditions of your employment. A reassignment or transfer to a different job that pays the same wages will not be considered an adverse action.

Adverse actions that are considered to be retaliation include:

• Discharge or termination
• A demotion involving a significant loss in pay or benefits
• A significant reduction of job responsibilities
• A change in title
• Blacklisting or jeopardizing a former employee's future employment
• Reporting an alien employee's undocumented status to the Immigration and Naturalization Service

Available Relief

When an employee has been discriminated or retaliated against in violation of the FLSA, the employee may seek:

• Reinstatement
• Promotion
• Back pay or lost wages
• Liquidated damages, which is an award of money damages in the amount equal to the award for back pay or lost wages

Some courts have awarded compensatory damages for mental anguish and emotional distress in retaliation cases.

Seeking help from an employment law attorney is a good idea, as FLSA cases can often be quite complex, and can involve very technical applications of the law. State wage and hour laws may also apply in such cases, and laws can vary among the states.

Related Resources on Lawyers.com^sm

- Employee Lawsuits under the FLSA
- Wage and Overtime Basics
- Employment Law in Your State
- Employees: Wages and Hours FAQ
- Employees: Selecting a Good Lawyer
- Find a Wage and Hour Law attorney in your area
- Visit our Employment Law for Employers message board for more help

Related Web Links

- U.S. Department of Labor Wage & Hour Division